- Kolchins v. Evolution Markets, Inc., 28 N.Y.3d 1177 (N.Y. Ct. App. 2018) - Does "mazel" mean "luck" or "congratulations" sufficient to indicate assent to enter into a contract?
- CSH Theatres, LLC. v. Nederlander of San Francisco Ass'n, 2018 WL 3646817 (Del. Ch. July 31, 2018) -Oral statements will not form an agreement unless there was a "promise." Disclaimer of fiduciary duties must be "plain and unambiguous." The court may consider extrinsic evidence if the contract is ambiguous, which means that the contract is "reasonably or fairly susceptible" of different interpretations.
- Cullinane v. Uber, 893 F.3d 53 (1st Cir. 2018) (applying Massachusetts law) - As a general matter, the rules of contract enforcement that apply to written contracts apply to online contracts ("no reason to apply different legal principles [of contract enforcement] simply because a forum selection clause ... is contained in an online contract"). The touchstone is that the terms have been "reasonably communicated and accepted," which in turn means there is "[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers[, which] are essential if electronic bargaining is to have integrity and credibility" (emphasis in original). The court used the UCC's definition of "conspicuous" for this purpose. The court then engaged in "contextualized" discussion of whether the particular notice was conspicuous, taking into account the kinds of factors (location and content of notice, etc.). On the facts, the court concluded that the consumers "were not reasonably notified of the terms of the Agreement." As a result, the consumers "did not provide their unambiguous assent to those terms."
- Armiros v. Rohr, 243 Ariz. 600 (Ct. App. 2018) - A buyer who clicked the "Buy It Now" button on eBay formed a contract binding the seller and was entitled to benefit-of-the-bargain damages, even though the buyer had not yet paid for the ring subject to the contract before the seller breached the contract.
- Plaze v. Callas, 2018 WL 1560057 (Del. Ch. 2018) -"In giving sensible life to a real-world contract, courts must read the specific provisions of the contract in light of the entire contract."
- Knezovic v. Urban Partnership Bank, 2018 WL 3022680 (N.D. Ill. 2018) - A court scrutinized a variable interest rate provision in a loan agreement when the bank providing the base rate failed and was taken over by another bank. The court held the rate remained available based on actions of the successor bank.
- De La Torre v. Cashcall, 5 Cal. 5th 966 (Cal. Sup. Ct. 2018) - The interest rate on a loan was the equivalent of the "price" of the loan and could be unconscionable under the "sliding scale" analyst [sic]. A particular statute did not displace unconscionability.
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- Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, 25 Cal. App. 5th 344 (Cal. Ct. App. 2018) - A release of a duty of care is effective with respect to activities within the scope of the release. The release is not effective with respect to gross negligence.
- MHS Capital, LLC v. Goggin, 2018 WL 2149718 (Del. Ch. 2018) - An exculpatory provision in the membership agreement for an LLC, which provides that the manager "shall not be liable ... for breach of such person's duty as Manager" but which also requires the manager to "discharge his ... duties in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner [he] reasonably believes to be in the best interests of the Company," did not prevent a contract claim against the manager for diverting LLC assets to himself and his friends.
- Lynch v. North American Co. for Life & Health Insurance, 2018 WL 356161 (D. Idaho 2018) - An insurer was not entitled to summary judgment on whether it properly terminated a life insurance policy. Although the policy required merely that advance notification of termination be sent, not that it be received, the insurer's evidence of its customary practices was insufficient to remove a factual issue about whether notification was properly sent to the policy owner in this case, who submitted evidence that no notification was received. There were no computer logs or other records to confirm that the insurer's customary practices were actually followed in this case, and the notification was not sent by certified mail.
- In re Lyondell Chemical Co., 2018 WL 565272 (S.D.N.Y. 2018) - Although a lender breached a $750 million revolving credit facility by failing to lend, the lender was insulated from liability by a term in the credit facility disclaiming consequential damages. Such clauses are enforceable under New York law except to the extent that they cover claims for gross negligence or intentional wrongdoing or are unconscionable, and there was no claim that any of those exceptions applies [sic]. However, the clause did not bar restitutionary damages, and thus the lender had to return the $12 million commitment fee paid by the borrower. While the lender would be entitled to deduct from that amount the value of its partial performance, arising from an earlier loan it made under the credit facility, the lender failed to prove the value of that performance.
- Firestone Financial, LLC v. Meyer, 2018 WL 651186 (7th Cir. 2017) A guarantor had no promissory estoppel defense based on the lender's failure to fulfill its alleged promise to finance all equipment that the debtor needed on the "same" and "identical terms" to the first two loans. Such an alleged promise did not make sense given that the first two loans had different principal amounts and interest rates, and the third had a different principal amount and term. Moreover, the guarantor could not have relied on the alleged promise when guarantying the first loans because they preceded the alleged promise, and he guarantied the fourth after the lender's CEO told the guarantor that it would make no more loans to the debtor.
- Melrose Credit Union v. Ulysses, 2018 WL 3118644 (N.Y. Sup. Ct. 2018) - A credit union was entitled to summary judgment on its action on a balloon note despite the debtor's assertion that the loan had regularly been renewed for over 25 years. The note expressly provides that the credit union has no obligation to refinance the loan, and thus the debtor could not have reasonably relied on any alleged oral promise to renew. Similarly, the debtor had no defense based on the credit union's refusal to renew the loan unless the debtor provided a home mortgage to secure the debt because the note expressly provided that the credit union could demand additional collateral even during the term of the loan.
- BlokBuilders, LLC v. Katryniok, 2018 WL 637399 (Fla. Dist. Ct. App. 2018) - A subcontractor on an excavation project that agreed to indemnify the contractor and its agents for any loss or damage resulting from the subcontractor's work was not obligated to indemnify the owner even though: (i) the contractor's agreement with...
